Kwall, R R --- "Why Intellectual Property Belongs in the First-year Property Course" [2006] LegEdDig 5; (2006) 14(3) Legal Education Digest 7

Why Intellectual Property Belongs in the First-year Property Course

R R Kwall

[2006] LegEdDig 5; (2006) 14(3) Legal Education Digest 7

54 J Leg Educ 4, 2004, pp 504–510

Theoretically speaking, teaching IP facilitates thinking about property law generally in a more integrated way. Indeed, the doctrines and theoretical underpinnings of all types of property law are similar. Moreover, the legal concept of ownership is quite similar for all types of property; the owner’s rights consist of her legal interests in the object in which the property is embodied. This conception of property contrasts markedly with the layperson’s definition of property, which focuses on physical ownership of the thing itself.

Covering some IP also enables an instructor to focus on relevant differences between IP and other property, an exploration that enhances students’ ability to understand the rationales for property protection on a global level. In addition, an instructor can use the subject matter to introduce statutory material into what is otherwise largely a common law course. Also, by doing at least some IP, students will get a flavour for what it means to work with and interpret statutes, and such exposure can be quite beneficial at this stage of their legal education.

As always, suggesting that new material be included in traditional courses raises the question: what would we have to leave out to squeeze this in? The author’s view is that there is no subject matter in first-year Property that is absolutely essential to a student’s understanding of the course. Property, perhaps more than any other first-year course, comprises a variety of distinct subject areas.

But even if no other course in the curriculum contains significant coverage of any one area, would the absence of exposure to certain material render one at a significant disadvantage in the legal profession? Her answer to this question is that, from a coverage standpoint, it really does not much matter what we teach our students in the first year. Of course, IP is vital for students in this day and age. Twenty years ago, IP was still a backwater area of the law. Finally, including IP materials in first-year Property will make the course more fun and more relevant to students’ lives. Perhaps more than any other area of property, IP is relevant to students’ individual lives. All students are consumers; all students are users of copyrighted materials; all students are authors.

So if you are inclined to give a one-week trial to IP, what would be the best way to proceed? The author’s suggestion is to incorporate the right of publicity as a separate unit. The right of publicity allows an individual to safeguard the commercial value of his name and likeness and to prevent others from exploiting them without permission. Probably most importantly, the right of publicity links back to the primary question of why we protect private property generally. Further, it is tremendously fun. It connects to an extraordinarily wide range of other issues dealt with in first-year courses.

As teachers, we often want to expose our students to the material we find most interesting. The author has always regarded the opportunity to teach first-year Property as a tremendous benefit because, by virtue of the course’s structure and composition, instructors typically enjoy a degree of latitude that is perhaps not available in any other course in the first-year curriculum. Although her bias is to use this flexibility to incorporate more IP, other teachers can make strong cases for adopting different important areas of interest, such as zoning and environmental law. The decision of what to include, therefore, often can be a difficult one, particularly for junior faculty. That said, we owe it to ourselves, and to our students, to break free from old patterns and try some new material. So, should you be so inclined, please consider IP.